Day of Action for Over-the-Counter Emergency Contraception

Last year on my personal blog, I wrote of my disappointment that Health and Human Health Secretary Kathleen Sibelius overruled a recommendation by scientists at the Food and Drug Administration and by FDA Commissioner Margaret Hamburg that Plan B One Step be made available over-the-counter without any age restrictions. In her letter to the FDA Commissioner, Secretary Sibelius said that there were “significant cognitive differences” between older adolescents and younger ones So, if age restrictions were removed, then the drug would be available without prescription or other point of sale restrictions for even the youngest girls of reproductive age (the average age of menarche in the U.S. is 11.1 years). Never mind that only 1% of all 11 year old’s have been sexually active (and for those, “sexually active” usually means rape or incest).

This is an unprecedented move by an HHS secretary — i.e. none of her predecessors has ever overruled the FDA on a drug application. It was not the first time that “politics trumped science” when it came to emergency contraception (give background).(during the George W. Bush administration, the problem was the FDA Commissioner).

Advocates who supported the OTC switch for Plan B often used the same language as feminist health activists from the 1970s, arguing that women should be freed from the “paternalistic” doctor-patient relationship embodied in the prescription. A group called the “morning-after pill conspiracy” formed in 2005 to help advance this cause. MAPC was inspired by the grassroots activism of the women’s liberation movement of the 1960s and 1970s: In an interview, one of the group’s founders, Annie Tummino said, “We speak out and engage in civil disobedience. Our goal is to send the message that women are the experts on our bodies and lives.” MAPC used a variety of direct-action techniques to protest the FDA and the Bush Administration’s stance on emergency contraception. They held consciousness-raising sessions; speak outs in major cities; and committed various acts of civil disobedience including passing along emergency contraceptive kits to women without a prescription.

Most emblematic of their ties to Second Wave feminist organizing were their actions at the March for Women’s Lives Washington, DC on April 25, 2004. The group held a mini-rally where a dozen women “testified about rushing around trying to get the Morning-After Pill after a condom broke during sex, about the prohibitive costs associated with a doctor’s visit, and about the tragicomic idea that anyone can get a doctor’s appointment in twenty-four hours, especially starting on a Friday or Saturday night.” In defiance of “unjust” prescription laws, the group flung boxes of Plan B® into the crowd. They also invited spectators “to join them in signing the Morning After Pill Conspiracy pledge to defy the prescription requirement (and break the law) by giving a friend the Morning-After Pill whenever she needs it.”

A group of physicians from the Association of Reproductive Health Professionals’ Reproductive Health Access Project contributed to this display of feminist direct action by bringing their prescription pads and freely writing prescriptions for emergency contraception for any woman who wanted one. According to MAPC member Jenny Brown, these doctors “were illustrating a point which was repeated over and over in the FDA’s advisory hearings–no physical evaluation or instruction from medical professionals is needed to safely and effectively use this medication.” Members of MAPC declared they “were proud to follow in the footsteps of feminists like Margaret Sanger, who passed out information on birth control when it was illegal to do so, and suffragists who were arrested for voting, to showcase how unjust the laws were.” Like the feminist activists who protested against the abuse of women subjects during the 1970s, MAPC members held a sit-in at FDA headquarters in January of 2005, where nine of their members were arrested for blocking access to the FDA, “just like they were blocking women’s access to birth control.”

Many of us had hoped that the practice of allowing political agendas to override solid scientific evidence would end with the Presidency of George W. Bush. We were sorely mistaken as the Secretary’s actions indicate that little has changed when it comes to the politically volatile area of reproductive rights.

Those of us over 17 should be concerned and not just because it unfairly targets adolescents. Keep in mind that over the past two decades, anti-choice groups have been able to whittle away at women’s right to choose by first going after the most vulnerable groups. Adolescents are an especially easy target because they can’t vote.

As I describe in my book, The Morning After: A History of Emergency Contraception in the United States, the first so-called “morning-after pills” were introduced in the United States during the mid-1960s, shortly after the U.S. Supreme Court decision Griswold v. Connecticut declared that state law prohibiting the use of contraceptives violated the “right to marital privacy,” and well before the same right to privacy was extended to unmarried persons of any age. As late as 1970s, only a small fraction of college and universities in the United States offered birth control services in the student health services. High school age girls faced even more barriers. Although some states did allow unmarried persons access to contraception, few allowed minors to do so without parental permission.

Health care providers worked around these restrictions a provision in the law that allowed for treatment of minors without parental consent when a case was considered an emergency. Sexual assault cases fit the bill perfectly, so the first uses of the morning-after pill were for rape victims treated in hospital emergency rooms. Activism by young people and their advocates eventually led to the removal of many restrictions on minors’ access to birth control. In 1972, the U.S. Supreme Court declared in Eisenstadt v. Baird that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

These advances in young women’s reproductive rights not only remained controversial but have slowly been undermined over the past two decades. For example, the U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania (1992) declared that laws mandating parental involvement did not place and “undue burden” on adolescent girls who were seeking abortions. Opinion polls conducted at that time found that a significant number of parents who were pro-choice were opposed to the idea that their daughters could have that same choice without parental involvement. As those of us involved in abortion rights activism know, things have only gotten worse since then.

Placed against this historical back-drop, it’s hard not to be suspicious about Secretary Sibelius’ decision. I think more is to this than preventing eleven year olds from taking Plan B improperly. Secretary Sibelius may think that by cloaking her decision in the language of protecting young girls from harm, she will deflect criticism from the Catholic Bishops and perhaps even win over moderate voters who remain uncomfortable with the idea that young people should have rights to make decisions about their reproductive lives independently of their parents. We can’t let her sacrifice the rights of young girls and divide activists along generational lines.

Please take action and tell her to allow all women and girls of reproductive age have access to emergency contraception without prescription. Join the Reproductive Health Technologies Project’scampaign to convince Secretary Sibelius to reconsider her decision. Their goal is to deliver a petition with at least 50,000 signatures to Secretary Sibelius on December 7th. The petition reads:

“Women’s health, including the ability to determine the timing and spacing of pregnancies, should not be subject to politics. After more than a decade of medical research, the Food and Drug Administration (FDA) determined emergency contraception (EC) is effective and safe enough for access without restriction. Doctors recognize EC as an important component of reproductive health care, allowing women a second chance to prevent pregnancy when a primary contraceptive method fails. In December 2011, Health and Human Services (HHS) Secretary Kathleen Sebelius overruled the FDA and restricted access to EC. We urge Secretary Sebelius to revisit the evidence and remove the restrictions, placing women’s reproductive health above politics.”

About the Author

Heather Munro Prescott is Professor of History at Central Connecticut State University. She is the author of The Morning-After: A History of Emergency Contraception in the United States, New Brunswick, NJ: Rutgers University Press, 2011.